May 16, 2007

Yesterday, I called the testimony of James Comey before the Senate Judiciary Committee "disturbing." Although I didn't link to it, I was influenced by this NPR report that I'd heard in my car. And I really must confess that I struggle on a daily basis with the powerful emotional tendrils that spiral out of NPR and twine around my brain cells!

So let's seek out some counterbalance today. Here's John Hinderaker's defense of the Bush administration. You simply must read the whole thing, because Hinderaker explains an elaborate time line and puts Comey's testimony in context in a way that is not susceptible to excerpting. Here's the conclusion:

[I]f you put the whole sequence together, it may well be that no actor in this admittedly lurid drama did anything wrong. Ashcroft and Comey apparently decided to go along with the conclusions of the Office of Legal Counsel and insist on changes in the program. Nothing wrong with that. Gonzales and Card may well not have known of Ashcroft's changed opinion, arrived at on the same day he went to the hospital--this is a key fact we don't know--and thought that Comey was trying to reverse his boss's judgment. So they went to see Ashcroft personally. Nothing wrong with that, as far as we know. Ashcroft set them straight; nothing wrong with that. (It's worth noting that Comey described Ashcroft's performance as a demonstration of physical and moral strength that was unprecedented in his experience.) President Bush then got into the act, learned the facts, and told Comey to do whatever he thought was right as acting Attorney General. Nothing wrong with that; on the contrary. The NSA program was revised to satisfy DOJ's concerns, and continued in effect, protecting Americans from terrorist attack, to the present time. Nothing wrong with that, to say the least.

I'm declaring myself cured of that NPR-inspired unease about all this. If you think Hinderaker is wrong in his interpretation, please explain.

66 comments:

This recounting is nothing new. It's over a year old, if I'm not mistaken. So why is NPR or anyone else rehashing this outside of the fact that AG Gonzalez was involved and is now under congressional scrutiny over firing 8 or 9 prosecutors? Besides, who the hell cares about this retelling?

Just curious. Bush sends Pancho to Ashcroft. Comey is there because he is acting AG. They speak to Ashcroft, not Comey who did not relinquish the Acting AG responsibility, they leave and ignore him. Then all the subsequent conversations. And then Bush does it anyway.

gosh that sounds just peachy. doesn't matter who tells that story or on what timeline.

Does anyone have a link to a transcript of Comey's testimony? I don't see one linked on NPR, and I don't see one linked from Hinderaker. That would be helpful just to check up on both the NPR and Powerline assertions about the content of Comey's testimony.

Bas is right--Hinderaker is off his rocker on the timeline. Of course, believing that Hinderaker is less biased in his analysis than NPR is already a sign of a dangerous delusion.

Consider this lovely sentiment: "Director Mueller instructed the FBI agents present not to allow [Comey] to be removed from the room under any circumstances."

So Comey, OLC, Mueller all conspired to convince Ashcroft to change his mind? And that's what Card and Gonzo believed? Really?

Well, considering that 1) they were aware of the OLC opinion and 2) Comey was de facto (and de jure) AG, it is highly inappropriate to try to go around him even if they believed that Ashcroft would have supported their circumvention of the Constitution.

Even most conservative lawyers had their jaws drop on this disclosure. For the purposes of this exchange, Hindrocket's argument--even if it were true!--is completely irrelevant. These bosos--and Gonzales being a lawyer should have known better--tried to circumvent a simple Constitutional authority with full knowledge that Comey was not the only one in opposition to the program. This was a Nixonian moment--two bumbling fools went forum shopping when they got an opinion they did not like. But, unlike the run-of-the-mill attorneys who get to forum shop for peanuts (like class-action suits), these guys did not care if the forum they were seeking had the actual authority to sign off on their venture.

It is also clear that they had sources other than Comey. Card knew before calling Comey to the White House that a number of high-ranking officials in the DoJ--in fact the entire command structure of the DoJ and the FBI would have resigned if the President and his tiny-brained henchmen pressed the issue. This was actually a good play because the White House could not afford the embarrassment of a mass resignation at that time.

Furthermore, Hindrocket is wrong with his statement that everyone might have done nothing wrong in the exchange because Gonzo went before Congress later and claimed that there was unanimous legal support for the program within the administration. And he just got a letter to that effect from the Senate.

The situation is quite simple--people like Hinderaker will do anything to try to explain away improprieties, conflicts of interest, illegalities and even crimes perpetrated by the members of this administration. The reason is simple as well--their whole mental structure has been vested in this administration over the past six years. Any previous conflict could have been explained away as partisan sniping. No longer!

Evidence of criminality is popping up virtually daily. Case in point--Reading First program. Appointees to the panel to determine the policy for Reading First had a profound conflict of interest--one of the members was a "Bush Pioneer" whose company stood to gain millions from the panel's recommendations if the recommendations included its products (they did). Other members would similarly benefit (mostly through royalties). Add that to the other recent Education Department scandal--the one where loan program administrators also had a conflict of interest. Then remember the fake news programs fabricated by or on behalf of the department with slush funds that were initially intended for improving schools. Then consider the Lisa-Keegan-DC-Condo fund, where nearly $2 million of funds intended to standards research instead went to former AZ Education Secretary's luxury accommodations. Not convinced? Well, more news comes today that ED officials used external email accounts that were not archived by the department, contrary to federal law. This is not the same "White House email" scandal--this is an entirely new scandal. And all of this just from one administrative department.

For the past six years, a bunch of corrupt Republicans in Congress not only abdicated their responsibility for monitoring the Executive Branch, but they intentionally scattered the investigations of wrongdoings that the White House could not silence itself. And every time something came up, Hinderaker and his ilk played along, "Move along, move along! Nothing to see here! There is no man behind the curtain!" Well, times change. Unfortunately, some people don't.

Balfegor, go to TalkingPointsMemo.com--they have the video and the transcript.

Thanks. Transcript (I think I've got the one you're talking about) appears to be from ThinkProgress -- incomplete and unofficial, but since there's recordings available, there's no reason to expect it to be wrong. Seems to be more or less in line with Hinderaker's presentation, although I think Gonzales still comes off looking rather slimy. The relevant bit for Hinderaker's presentation seems to be:

COMEY: I went to the Oval Office — as I did every morning as acting attorney general — with Director Mueller to brief the president and the vice president on what was going on on Justice Department’s counterterrorism work.

We had the briefing. And as I was leaving, the president asked to speak to me, took me in his study and we had a one-on-one meeting for about 15 minutes — again, which I will not go into the substance of. It was a very full exchange. And at the end of that meeting, at my urging, he met with Director Mueller, who was waiting for me downstairs.

He met with Director Mueller again privately, just the two of them. And then after those two sessions, we had his direction to do the right thing, to do what we…

SCHUMER: Had the president’s direction to do the right thing?

COMEY: Right.

We had the president’s direction to do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify to its legality.

A few more things. Predictably, ThinkProgress has the transcript up, in case you don't want to watch the video. Irrespectively of TP's agenda, you can't argue with the transcript.

Second, Lederman backs the "President authorized the program despite DOJ's opinion that it was not legal" argument at Balkinization.

Third, here's the summary of the relevant point of Comey testimony from TPM"After Comey arrived at the hospital with a group of senior Justice Department officials, Gonzales and Card arrived and walked up to Ashcroft, who was lying barely conscious on his hospital bed. "Gonzales began to explain why he was there, to seek his approval for a matter," Comey testified. But Ashcroft rebuffed Gonzales and told him that Comey was the attorney general now. "The two men turned and walked from the room," said Comey.

A "very upset" Andrew Card then called Comey and demanded that he come to the White House for a meeting at 11 PM that night.

After meeting with Justice Department officials at the Justice Deaprtment, Comey went to the White House with Ted Olson, then the Solicitor General to the White House. He brought Olson along, Comey said, because he wanted a witness for the meeting.

But Card didn't let Olson enter and Comey had a private discussion with Card. This discussion, Comey testified, was much "calmer." According to Comey, Card was concerned about reports that there were to be large numbers of resignations at Justice Department. Gonzales entered with Olson and the four had an apparently not very fruitful discussion.

The program was reauthorized without the signature of the attorney general. Because of that, Comey said, he prepared a letter of resignation. "I believed that I couldn't stay if the administration was going to engage in conduct that Justice Department said had no legal basis."

At this point, according to Comey, a number of senior Justice Department officials, including Ashcroft, were prepared to resign.

So the White House backed off not because they were convinced by legal arguments--that hasn't stopped them before--but by the threat of mass resignation.

Hinderaker's timeline is fiction as well. The program did not start until well into 2002 and it was a moving target--the conditions evolved as the program was developed. The claim that Comey did not tell the White House that Ashcroft shared his opinion is false as well--and Card and Gonzo certainly knew Ashcroft's opinion after Bush's call to the ICU.

Like I said before, Hinderaker will invent an excuse to whitewash nearly anything that this administration does. When he's unable to do so, he goes into a deep depression that is easily discernible in his writing. He is nearly manic in concocting theories to excuse the inexcusable behavior. But, of course, he can only do so by throwing in a few fabrications. When these bits don't add up, the whole story falls apart.

(Instead, wake up to the ghastly shrieking of Stephen Tyler or Styx on some oldies station. That'll get you out of bed!)

Then, after going cold turkey for a few months, tune back in...and see if you don't agree that NPR is populated by prissy pontificators whose remarks are punctuated by pious platitudes and evasive palliatives.

..Oh, lawdy mama, those Friday nights when Suzie wore her dresses tight, and the crocodile rocking was ow, ow, out of sight....

Actually, I think your critique falls apart on the details too. For example, you say:

The claim that Comey did not tell the White House that Ashcroft shared his opinion is false as well

But what Hinderaker says is:

Comey did not say--amazingly, no one asked him--whether he ever told the White House that Ashcroft had agreed with this conclusion on the very day when he was taken to the hospital.

And this is born out by ThinkProgress's transcript. You're misrepresenting what Hinderaker says -- he states the fact and draws an inference, which you dispute. But he at least gives the grounds for his inference. What are your grounds?

You also say:

Hinderaker's timeline is fiction as well. The program did not start until well into 2002 and it was a moving target--the conditions evolved as the program was developed.

And here is what Hinderaker says:

The program in question, while Comey declined to identify it, was obviously the NSA surveillance program, which required reauthorization, pursuant to President Bush's order, every 45 days. The NSA's international terrorist surveillance started almost immediately after September 11, 2001. Attorney General Ashcroft had certified its legality every 45 days thereafter, a total of approximately 19 or 20 times.

You have two claims there. On the first, I wasn't aware that we knew exactly when the program was implemented -- only that it was implemented sometime after the AUMF. Even if we accept your first claim as correct, though, it doesn't really affect Hinderaker's argument -- he's only offering the specific timeline to illustrate that Ashcroft had repeatedly reauthorised the program. At most, your first claim reduces his 19 or 20 authorisations by Ashcroft to 14 or 15. No impact on his argument.

For your second, that:

it was a moving target--the conditions evolved as the program was developed.

I don't think Hinderaker would dispute that characterisation at all. Indeed, he says:

Bush reauthorized the NSA program, but immediately thereafter, Comey says, the program was revised in some unspecified way to satisfy the DOJ's new concerns.

You also put the following gloss on Bush's conversations with Muller and Comey:

So the White House backed off not because they were convinced by legal arguments--that hasn't stopped them before--but by the threat of mass resignation.

And here is what you (and TPM) seem to be inferring this from:

SCHUMER: Right. OK.

Was there any discussion of resignations with Mr. Card?

COMEY: Mr. Card was concerned that he had heard reports that there were to be a large number of resignations at the Department of Justice.

There's two things to note here: 1) the White House didn't back off -- Bush reauthorised the program over Comey and Ashcroft's objections. 2) on March 12, Bush directs them to do what they need to do to make the program legal, in their view, after a conversation first with Comey, and then with Muller. Comey describes his conversation as "a very full exchange," but doesn't give any details. It's possible that Comey is spending 15 minutes articulating his threat to resign if the program is not revised, and that Muller then comes in to do the same. But it seems more probable to me that they're laying out their argument to the President, and the President is deciding that their concerns are reasonable. Accordingly, the program is revised, so they're willing to sign off on it.

I'm declaring myself cured of that NPR-inspired unease about all this. If you think Hinderaker is wrong in his interpretation, please explain.

Hindraker wrote:

Comey did not say--amazingly, no one asked him--whether he ever told the White House that Ashcroft had agreed with this conclusion on the very day when he was taken to the hospital.

Hindraker wrote earlier in his post that Comey had testified:

And over the next week--particularly the following week, on Tuesday--we communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail....

Hindraker here is assuming that Comey, in his explanation to the relevant parties at the White House, that Comey did not mention that it was a decision arrived at through extensive discussions with Ashcroft. You will notice that Hindraker does not say that Comey never communicated Ashcroft's new position on the program...rather Hindraker says that Comey did not specifically state in his Senate testimony that he shared this information about Ashcroft's change of heart.

Hindraker has to assume this in order to support his contention that Gonzales and Card's motives for circumventing the acting attorney general and going to the hospital to visit Ashcroft were innocent.

Hindraker must also make another assumption that one should examine closely before making a decision about his explanation. Hindraker speculates "Alberto Gonzales and Andy Card thought that the problem lay with Comey's staging a sort of palace coup. "

So, in order for Hindraker's explanation to be a closer approximation to the truth one must assume that Comey did not tell the White House that the decision not to certify the program was a result of conclusions arrived at by both Comey and Ashcroft and that Comey was the type of person to stage a coup.

Finally, while people can easily manipulate their verbal communication, they have greater difficulties hiding their nonverbal communication. Comey's affect during the testimony was one of distress and concern about Card and Gonzales's visit with Ashcroft in the hospital. Comey did not 'behave' as though he perceived the White House pair's visit with Ascroft as one of uninformed individuals visiting the hospital to simply insure that Comey was not capsizing their program.

There are many possible scenarios but I will outline at least three:

1. Gonzales and Card, for whatever reason, did not trust Comey, even though he may have told the White House that this was a position arrived at by Ascroft and Comey, and wanted to hear the Justice departments position from the horses mouth (Ashcroft). Slimey, but not as bad as scenario #2

2. Gonzales and Card went to the hospital to verify Ascroft's new position and see if they could influence-pressure him to change his mind (slimier than scenario #2)

3. See Hindraker's portrayal.

4. Some other possibility

Comey's nonverbals during his Senate testimony, along with Hindraker's unverified and rather speculative assumptions lend less support to #3 than either one of the first two (or some other) scenario's.

I guess life is about trading one disease in for another. I could give you the name of my internist...He's willing to touch up the X-rays if I can't afford the illness.

O.K. Let's see. Mr. Comey is a lifelong conservative Republican. He is active AG. It is known by all that DOJ has concluded that it cannot sign off on the legality of the "program." Comey finds out from his staff that the president's office is sending over Card and Gonzalez to talk to Ashcroft (in the intensive care unit, mind you) and see if he will sign off on the program. Comey is so concerned that he speeds to the hospital and calls the head of the FBI to protect him in case they try to have him thrown out. Gonzalez and Card arrive and are rebuffed by the ailing Ashcroft and leave without acknowledging Comey. Comey is subsequently called by Card to come to the Whitehouse and they have a heated discussion. Comey tells Card that after the conduct he just witnessed he will not come without a witness and his choice of witness is SG Theodore Olson no less. Comey and almost the entire top layer of DOJ threaten to resign.

I think you need to watch the entire video, including the only Republican with any cajones on the committee, Sen. Specter's reaction. I think the only reasonable reaction to this sequence of events is astonishment.

What the hell are you people arguing about? The intonations and verbal/non-verbal subtleties of what was said, who said then and why? In a court of law, this would be tantamount to hearsay evidence and rightly tossed out. Since this is the court of public opinion, you guys are arguing about how things are said or not said and what significance that holds. It all amounts to empty conjecture. Why hasn't AG Ashcroft come to the fore and give his recollection about the actual incident. He was in the hospital room with now AG Gonzalez and then acting AG Comey was he not?

Were discussions like this had when programs like Echelon and Carnivore were put into place? I hardly recount any congressional hearings taking place with respect to the legality of these two programs going into effect and this was under a republican congress with a democrat president. Even then there wasn't the level of shrilling and hand-wringing you are seeing today and what makes it worse, is that we are actually in conflict with those that those two original systems were setup to find in the first place.

Methadras said...What the hell are you people arguing about? The intonations and verbal/non-verbal subtleties of what was said, who said then and why? In a court of law, this would be tantamount to hearsay evidence and rightly tossed out.

Professor Althouse requested that we explain alternatives to Hindraker's interpretation.

Are you advising juries, judges, and attorneys to ignore the verbal and nonverbal communication of various parties in a hearing, as well as dismiss what was said, who said what when, and why? I'm not comfortable with your approach.

The following facts seem quite clear from the transcript of Comey's testimony:

1. In the transcript, Comey told the White House people that "we" in Justice would not opine that the program was legal. He says he explained in detail the basis of the decision. There is no reason to think that he would not have explained both the reasoning behind the decision and how it was reached (that is, that OLC had looked into it closely).

2. Comey was the Acting AG. He had the power and obligation to refuse to certify legality. Ashcroft, by law, did not. Ashcroft also lacked the power to overrule Comey on the issue.

3. Ashcroft's lack of legal authority was based upon his presumed lack of capacity to consequential legal decisions for the nation. Plus, of course, he was a sick man and his wife had prohibited visitors.

4. When Card and Gonzalez visited Ashcroft they were carrying an envelope. If it had been a greeting card, they would have left it. Comey and those present all inferred that it was the authorization. Gonzalez, the President's lawyer, started right in, without acknowledging the Acting Attorney General, to ask for the authorization that Ashcroft lacked the power to give. Despite this, Card later claimed that he and Gonzalez had simply been there to wish Ashcroft well.

5. Card and Gonzalez knew that Ashcroft lacked legal authority to approve the program and that he was a very sick man. They also had every reason to believe that he would be without counsel, other than that which his wife or doctors might provide for him.

6. Isn't this indisputably a complete end run around proper procedure? If this were an effort to get an individual will executed it would be a virtual disbarment offense. Why doesn't this make you uncomfortable? It obviously deeply troubled Comey,made Mueller uncomfortable, their aides uncomfortable. It made Comey unwilling to meet with Card without a witness. And these lawyers aren't NPR--they are administration lawyers, with long and highly decorated careers are public lawyers, trying to do their jobs. On this matter, you are showing either tone deafness on legal ethics or an inexplicable willingness to take, without independent examination of the evidence, the view of a known right wing advocate/apolologist over a moderate left leaning news source.

I think this post is another example of Ann's focusing too much on style as opposed on substance.

First, as many commenters pointed out, Hinderaker will say whatever to whitewash this Administration. I take everything he says with a huge grain of salt and I have absolutely no respect for the man. As others pointed out on this thread, the assumptions that Hinderaker's so called "theory" requires are laughable.

Secondly, the large issue which Ann completely left out (unsurprisingly) is the issue on which people who take our rights SERIOUSLY are focusing: namely, if Ashcroft (!!of all people!!) believed that the program was illegal, then do you imagine the scope of the program?! Do you care at all about this? Somehow, I doubt...

I am willing to assume with you that Comey's demeanor revealed his emotional commitment to the proposition that he was standing up to an improper usurpation of power by the President and his White House staff.

Nonetheless, this sincerety does not allow me to presume that his judgment was correct either as a matter of fact or as matter of law.

Factually, I believe John Ashcroft would have had a one on one with the President if he thought there was any impropriety by Card and Gonzales.

Legally, I think it unlikely there was anything to this, or leaks would have gotten to Schumer, et al by now.

Mark: I take everything he says with a huge grain of salt and I have absolutely no respect for the man.

Mark, no one gives a rats ass what you respect. Argue the man's points instead of huffing an puffing on your keyboard.

I think this post is another example of Ann's focusing too much on style as opposed on substance.

Right, and evidence of that would be what? The fact that Althouse specifically lists the points made by NPR and the counter points made by Hindracker? And the fact that Althouse in her own comments specifically tells a commenter to go back and do research and to deal with specifics?

Frankly, what this is an example of is how typically without a shred of intellect you pontificate, apparently unaware of just how intellectually inferior you are to Althouse and her usual crowd.

Tell us, Mark. Isn't that shrieking noise you hear in the back of your mind generate by your own weariness with yourself?

Boy howdy, is the Gonzales stuff 100% boring, or what? Is this supposed to be an interesting scandal? It makes my hair itch.Was the card an order or a get-well?What was the real timeline?Will Lisa finally realize that Brad is cheating on her?

Seriously dull.Gonzales is mediocre. Whatta surprise. The Democrats are intent on fighting the War on Bush, and ignoring the Terr... um, Crimes by guys amazingly all named Mohammed. And NPR, biased?? Heaven forfend!

I stopped listening to NPR a few years back. Sept 2001, if I recall correctly. Something about an explosion that pissed me off, and how their coverage pissed me off too. But, you know, they're way totally patriotic and stuff.

I wonder how others feel about a parallel proposition: is it better to allow the government to listen to 100 innocent phone calls in order to hear the one incriminating one?

Hmm, alter this proposition to fit the program and you would have:

is it good to allow the government to listen to 100 innocent phone calls made from suspected terrorists in foriegn countries in order to hear the one incriminating phone call from a real terrorist in a foreign country.

His assumption that Comey was changing policy isn't born out by the facts. Both Ashcroft and Comey and Mueller at FBI threatened to resign over the issue. If Ashcroft was giving carte blanche then why the threat?

that the NSA was used in survellience isn't the issue raised. The issue is HOW and DOJ opined that it was not being used legally. Catch Jonathan Turley's explanations and analysis on MSNBC just as recently as last night.

Please, Ann, don't "j'accuse" on assumption. Hindraker's account reminds me the Henry IV account of his meeting with Pope Gregory where he penitantly waited barefoot in the snow for three days for his audience and eventual resolution of the issue. The problem isn't that he talked to the Pope, the problem rests in the "barefoot three days in the snow" - a fact overlooked (as in Hindraker) as outside the stream of logic.

Legally, I think it unlikely there was anything to this, or leaks would have gotten to Schumer, et al by now.

It is amazing to hear adults use an excuse often employed by oppositional children or teenagers to justify their misbehavior or the misbehavior of others they have a vested interest in. They minimize their actions or the actions of others by comparing it to something obviously worse. How many times have we heard, "well sure I called my sister a name, at least I didn't hit her"....or "Yea I'm failing in most of my classes, at least I'm not doing drugs." and on and on and on.

I read articles like the one cited above, or hear "well-respected" pundits on TV use this excuse and I wince because I don't want my children to model the conduct of the individuals under question or the behavior of the pundit looking to excuse the inappropriate actions of others.

For all of the folks who know the reality of what happened, congratulations on your omnicience. I would suggest you review the 1950 Film Roshomon which present a "factual" incident as seen by the eyes of five different observers.

Does any one think that it is likely the Comey sees it through his lenses and the way he would have liked it to be? that that NPR sees it through their lenses they way they would like it to be? that Hindraker sees it through his lenses the way he would like it be?

And we havent heard from Ashcroft, Card, Gonzalez, Cheney or Bush about this.

And you folks are arguing about what the "reality" is? As if YOU know what the reality is? When all you really know is a third hand story that you are filtering through your considerable biases? And you are trying to convince folks who are equally biased to change their biases and see it your way?

Do something productive. Visit your animal shelter and walk a dog who is going to get euthanized tomorrow....

Ann if you don't have any problem with the illegal wiretapping program, it's really no surprise that John Hinderaker can convince you that there's nothing at all improper about the way in which it was implemented.

Without more facts, no one could prove that Hinderaker's analysis is wrong. What Hinderaker does is he takes the (generally) agreed upon facts and tells a narrative that does not paint Card and Gonzalez as evil incarnate. To me the most important part of Hinderaker's narrative is his presentation of a non-nefarious reason for Card and Gonzalez visiting the hospital; namely, that the Acting AG's decision represented a departure from Justice's prior position and they wanted to make sure that the ailing AG was onboard with the decision.

That said, despite Hinderaker's narrative, I still think that Comey's testimony (regardless of any NPR coverage)might give reason for concern. Orin Kerr, for example, presents a few reasons for possible concern from the testimony (though one of the points was brought to his attention by reading Greenwald). In my view, Hinderaker's narratvie did not adequately explain why Comey "thought [he] had just witnessed an attempt to take advantage of a very sick man." Hinderaker's narrative does not, for me, adequately explain the unease which Comey felt with the situation. This isn't to say there aren't ways to explain that unease, just that I don't see Hinderaker's narrative as explaining it.

namely, that the Acting AG's decision represented a departure from Justice's prior position and they wanted to make sure that the ailing AG was onboard with the decision.

Except we would be asked to assume as Hindraker does that either Comey did not share with Gonzales and Card that Ashcroft was on board (seems a bit far fetched, no? The only support that Hindraker offers for this bit of speculation is that Comey, in his testimony did not explicitly state that he communicated Ashcroft's change of position to G & C and that he was not explicitly asked by the senate committee. Comey did assert that the White House was thoroughly briefed about the DOJ change of heart decision, however) or the pair did not believe Comey when he told G & C. that Ascroft had grown uncomfortable with the program as is. As I noted in an earlier post, if the latter approximates the reality, then one might assume that there is/was a significant level of deceit, distrust, and hypervigilance in the atmosphere enveloping this administration and generally this kind of perceptual style emanates from the top. One could speculate that there was a disconcerting level of 'projection' (a psychological term that describes an unconscious defensive process of ascribing to someone else, one's own unacceptable impulses and motives as a way to avoid taking full responsibility for them) coming from some key people in this White House.

You also make, what I think is the astute observation that Comey's affective and nonverbal reactions were inconsistent with and not addressed by Hindraker's theory.

A retired psychologist, I believe formerly out of UCLA by the name of Paul Ekman has done some of the most impressive research on the nonverbal components of emotion and affect, particular as they relate to facial expression and deception. Among other things, he has been consulting with the Department of Homeland Security and training individuals in using his research to help spot potential terrorists.

Also, you might factor in things such as the lare number of top ranking DoJ officials who were willing to resign over the matter.

Also, Hindraker provides nothing tpo substantiate his many rationalizing claims:"By March 2004, when the events described by Comey occurred, the NSA program had been in operation for 2 1/2 years, continuously certified as legal by the Department of Justice. "

They're conservative, so you'll listen to them, Ann. And, consider the resistance from the bush Adminstration the Post reveals and why they'd want to stop Mr. Comey from testifying:

Sen. Arlen Specter (R-Pa.), who was then chairing the Judiciary Committee, got Mr. Gonzales to agree to have Mr. Ashcroft testify. But when Mr. Specter followed up with a letter asking as well that the department approve the appearance of former deputy attorney general James B. Comey, Mr. Gonzales balked.

If called to testify, Mr. Ashcroft and Mr. Comey wouldn't be allowed to reveal "confidential Executive Branch information," William E. Moschella, an assistant attorney general, wrote to Mr. Specter. "In light of their inability to discuss such confidential information . . . we do not believe that Messrs. Ashcroft and Comey would be in a position to provide any new information to the committee."

Curious, isn't it? If it's a simple question of them wanting to check his position, as Hindraker says, why does that defense only come up from some blog, rather than from Tony Snow?

I, and tony Snow, could boil Hind's rationalization down to one quippy sentence and I think Snow would have, if they'd only thought of this first.

Alpha: Obviously, they are keeping their internal deliberations confidential, as Presidents tend to do, especially about national security matters. So how could Tony Snow be expected to provide the time line? Hinderaker is guessing at what could have happened. He doesn't claim to know. If you think his scenario doesn't fit the story as told by Comey, be specific and say how that is. Neither fit nor lack of fit would prove whether the Hinderaker guess is correct or not, but your failure to engage with it is annoying. You refuse to do it. I could take that as a point in favor of it, you know. You're strenuously avoiding the issue I raised.

"Gonzales and Card may well not have known of Ashcroft's changed opinion, arrived at on the same day he went to the hospital--this is a key fact we don't know--and thought that Comey was trying to reverse his boss's judgment."

Earlier, Hind admits that Ashcroft had decided a week earlier to oppose the program.

Elsewhere, Comey refers to daily meetings at the White House by the (Acting and appointed) AG. Can we all accepot that the AG's office was/is in frequent contact with the White House on terror matters?

John Hindraker would have us believe Ashcroft reached this decision and didn't say anything to the White House for a week despite frequent contacts.

Hard to believe that something this important would be ignored.

Further, what was the letter that Gonzales brought to the medicated man's bedside? Hindraker is silent on that.

And, Hindraker keeps coming up with new angles which the White Hous ehas not proferred. Such as: "Alberto Gonzales and Andy Card thought that the problem lay with Comey's staging a sort of palace coup."I'll bet that's news to them!

Comey is just another small bit player on a long list of individuals used by Bush haters to cast Machiavellian motivations by the Administration. Here we have a program in place, one of the players is taken ill and the President's staff rightly consults the missing team member. Had Ashcroft not taken ill, told interested parties at the White House what changes were needed, they would have been approved and Mr. Comey's 15 minutes of self promotion would have never happened. When it became clear that this was not just Acting AG Comey, but the entire DOJ that had concerns, the President agreed to the changes. This is the same Comey that allowed Fitzgerald to trample Executive Privilege in the Plame investigation.

Thanks for your reply. Here's the thing: I've got a job. Sorry if that's "annoying". It can be a pain for me, too, but the paychecks come in handy.

My point was: If Hindraker's line is correct (that they only wanted to confirm the Acting AG's position with the appointed AG) then why didn't the WH use that line? It's not anything meriting confidentiality. If the case could be made, it's a good defense. That the WH doesn't make this claim themselves is telling.

Also, if they just need to check out something like that, why did they need to bring two top Presidential aides to ask?

Beyond that and the views and (substantiated) niformation I've already provided, many of Mr. Hindraker's claims should be verified. Some are odd. the fact that he doesn't substnatiate anything in this post by linking to other sources is also curious.

This has been pointed out at Balkinization especially ( http://balkin.blogspot.com/2007/05/can-you-even-imagine-how-bad-it-must.html ), and elsewhere. A new head of the OLC had been appointed in 2003 (Goldsmith), who conducted a thorough review of the legal opinions used to authorize the wiretapping. Please note, under FISA, all wiretaps for outside the US required no authorization or legal review, only those that had a terminus with a US citizen in the US.

The previous opinions were written by John Yoo (of the he's the President he can do what he wants theories). Goldsmith decides that the theories are unsound, either at their base or in how their applications are changing, and states that the program (which also apparently was never approved by Congress--don't claim AUMF) cannot be approved. Comey and Ashcroft agree after meeting with Goldsmith.

New reviewer doesn't agree with old reviewer. I think many citizens would like to see the legal arguments made to approve the program in both cases. I highly doubt that there is anything truly a state secret, unless that secret is "I don't want you to know what I am doing." If the administration has a sound legal theory, and nothing to hide, why do they continue to hide it? We all know they're doing it, we don't need the technical methods, just the justification, and one that's better than "because I said so!"

Prof. Althouse replied...but your failure to engage with it is annoying. You refuse to do it. I could take that as a point in favor of it, you know. You're strenuously avoiding the issue I raised.

It's funny. I am not annoyed by Alphaliberal's posts. He said he did not have the time. I take him at his word. I do not know if it is strenous avoidance or a need to prioritize and manage his time. I mean, I assume you do not have much of an idea about what is going on in his life.

For instance, Initially, I was hesitant to respond to your probe because it takes 110% of my time to incompetently handle the activities of daily living, like feeding myself and my children. I hardly have the brain cell power to do that, let alone respond with some sense of coherence. Alpha directed me to some posts that I assume reflect his take on Hindraker.

Nonetheless I do find your comments sufficiently manipulative/provocative to be difficult for some folks to resist. Although I am not sure I could, I would encourage Alphaliberal to do his best not to respond to your accusations until he had the time, if at all. Be careful Alpha Liberal, too quick a response might prove gratifying to Ms. Althouse and reinforce her behavior. As a matter of fact, I think this post may be increasing the liklihood that Ms. Althouse will continue her evocative remarks.

Fritz wroteHad Ashcroft not taken ill, told interested parties at the White House what changes were needed, they would have been approved and Mr. Comey's 15 minutes of self promotion would have never happened.

Not only is this counterfactual, it is delusional! Ashcroft had already said by then that he would not sign the reauthorization without changes. Comey a long-time Republican and--at least, formerly--a Bush supporter. Not so sure he remains one, especially after all the smears. Fitzgerald, by the way, is also a Republican, as were 7 of the 9 USAttys known to have been fired. Two were independents, but Republican supporters. Carl Ford was a Republican until smeared by Bolton and the White House. In fact, the one common theme in White House scandals of this administration has been a habit of turning Republicans into anti-Republicans by smearing them either to prevent them from giving damaging testimony or to try to discredit them. The code word is "cry wolf"--one with no credibility cannot discredit someone else with smears.

The scary thing is that there are a whole lot of idiots--including some who comment here--who buy the propaganda.

alphaliberal,The testimony this thread refers to is about DOJ re-certification of a counter terrorism program. I thought Comey's role was oversight. The six day acting AG was engaged in an office politics turf war and the President made the final decision.

Fritz said... alphaliberal,When there is no policy argument, criminalize the politics. I didn't know office politics is a cause for criminal investigation.

Sometimes I wonder what folks mean when they decry the criminalization of politics.

Personally, I tend to resent those politicians who seem to get away with crime, while us little guys more often seem to get the screws put to us if we get caught violating the law (in what appears to be an increasingly politicized and inconsistent legal system). I would like to see more accountibility brought to bear on the self-serving shenanigans of those politicians who break the law, above and beyond the electoral process. Wasn't it Bob Dylan from his Jokerman album that sang:

"Steal a little and they throw you in jail, steal alot and they make you king"

mindsteps,If the local paper writes a story about you and then you respond to whatever they said, do you really think it is right to have a special prosecutor investigate your motivations for your reply? Do you feel it would be ok for the special prosecutor to rifle through your personal papers to seek out your personal thoughts? Of course not, but that is exactly what Fitzgerald did to Vice President Cheney. The Vice President doesn't have to satisfy to a prosecutor his motivations, nor does the President have to satisfy why his staff wished to speak with his Attorney General. Neither is a crime, yet there are those that want to start criminal investigations?

Here's another timeline on the events leading up to the hospital incident.---------Hinderaker's selective interpretation: -and thought that Comey was trying to reverse his boss's judgment. So they went to see Ashcroft personally. Nothing wrong with that, as far as we know.Hinderaker ignores the attempt to get an unauithorized, unacting AG to sign off on a program over the objections of the person with the authority of the AG's position.

This is not in keeping with Mr. Comey's testimony:

Comey: And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval for a matter, and explained what the matter was — which I will not do.

And later...SCHUMER: OK.

And they made it clear that there was in this envelope an authorization that they hoped Mr. Ashcroft — Attorney General Ashcroft would sign.

COMEY: In substance. I don’t know exactly the words, but it was clear that’s what the envelope was.

Hinderaker describes this visit as simply trying to confirm the Acting AG's position and iugnores the inconvenient envelope. Hinderaker is silent on the question of the authority of the AG, who had handed off his authority, to sign anything. (Can we really have two Ags at once?)

And, again, an earlier report that the sought certification, as the deadline was upon them.'With Mr. Comey unwilling to sign off on the program, the White House went to Mr. Ashcroft - who had been in the intensive care unit at George Washington University Hospital with pancreatitis and was housed under unusually tight security - because "they needed him for certification," according to an official briefed on the episode. The official, like others who discussed the issue, spoke on the condition of anonymity because of the classified nature of the program.'

Hindraker glosses over the fact that Bush signed off on the program over strenuous objections and threats of resignation from DoJ staff:COMEY: The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality. And I prepared a letter of resignation, intending to resign the next day, Friday, March the 12th.

More accounts of promised resignations at the testimony link.

To make it easy for you, Ann:- Hinderaker ignores facts in the case, that they came seeking a signature, not to ascertain. - The AG said he lacked the authority to sign, at any rate, whcih the top White House aides would have known (unless incompetence is their defense). - John Yoo was the person at DOJ who previously signed off on the program. (ahem)

Hinderaker: So they went to see Ashcroft personally. Nothing wrong with that, as far as we know.

Actually, there are various things wrong with this, which should speak, loudly, for themselves:

A) Ashcroft was not the acting AG at the time. Comey was. They sought a signature that had no authority. B) He was in the ICU and sedated and not in condition to be forced to make major decisions.C) Mrs. Ashcroft "had banned all visitors and all phone calls" so this was contrary to the best interests of Mr. Ashcroft. Badgering a sick man in the ICU. Hmmm... we really need to explain what's wrong with that?

Fritz said... mindsteps,If the local paper writes a story about you and then you respond to whatever they said, do you really think it is right to have a special prosecutor investigate your motivations for your reply? Do you feel it would be ok for the special prosecutor to rifle through your personal papers to seek out your personal thoughts?

Look, I don't know the statutes regarding special prosecutors or what. I wouldn't know whether to call one or not. But as a health care provider, if someone reports a complaint to my state board, they have to investigate, no matter how outlandish or trivial. The risks of an investigation increase exponentially when I make public statements or maintain a high public profile. These boards can be very tough (some say unfair)and look wherever they want in my particular profession.

I had a much lengthier post, but my connection to this blog went up in smoke...so you are spared my stupid little rant.

Needless to say, I don't feel sorry for Bush, Cheney, Gonzales, or going back a ways, Clinton and their ilk. They all give me this sickening feeling in the pit of my stomach.

Perhaps you should stop listening to NPR because they cause you unease.

It's being rehashed because Comey testified in front of the senate in his testimony was really quite riveting.

Ann, if NPR bothers and John Assrocket changes your mind why don't you actually watch the video of Comey testified and come to your own conclusion and then you can share your feedback with us.

Rather than sharing others reporting the story and how there reporting made you "feel" why don't you look at the video?

Watch the video? Have you watched? Now let us know, what is your feedback on Comey and his testifying? No peeksie at LGF, come on all by yourself, you can do it. It's ok if you may feel not right wing enough. Cedarford and your bfriends will still love you.

Ha-ha! Here we go again! The Bush Command may have villated the law disclosing national security information. Step aisde, Valeria Plame!

Time reports that Gonzo's top secret discussion in the Ashcroft family ICU room may have violated serious disclosure laws. "Executive branch rules require sensitive classified information to be discussed in specialized facilities that are designed to guard against the possibility that officials are being targeted for surveillance outside of the workplace," says Georgetown Law Professor Neal Katyal, who was National Security Advisor to the Deputy Attorney General under Bill Clinton. "The hospital room of a cabinet official is exactly the type of target ripe for surveillance by a foreign power," Katyal says. This particular information could have been highly sensitive. Says one government official familiar with the Terrorist Surveillance Program: "Since it's that program, it may involve cryptographic information," some of the most highly protected information in the intelligence community.

The law controlling the unwarranted disclosure of classified information that has been gained through electronic surveillance is particularly strict. In the past, everyone from low-level officers in the armed forces to sitting Senators have been investigated by the Justice department for the> intentional disclosure of such information. The penalty for "knowingly and willfully" disclosing information "concerning the communication intelligence activities of the United States" carries a penalty up to 10 years in prison under U.S. law. "It's the one you worry about, says the government official familiar with the program

1. Hinderaker states "The NSA's international terrorist surveillance started almost immediately after September 11, 2001. Attorney General Ashcroft had certified its legality every 45 days thereafter, a total of approximately 19 or 20 times."

This is a misinterpretation of the 12/17/05 radio address about the program. I'll reprint the paragraph in its entirety, to preempt accusations of selective editing; the transcript is taken from the White House site, if anyone wants to check. I'll boldface the sentences that he appears to be misstating:

"The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation's top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups."

There are at least three flaws in Hinderaker's summary:

First, this language absolutely does not state that Ashcroft re-approved the program every time it was re-authorized. It does not say he was required to do so. It says he was one of at least two officials ("including the AG and CP") who could approve.

We do not know how many people might be considered "our nationa's top legal officials." Under that definition, John Yoo, who worked in the Justice Department's Office of Legal Counsel and wrote the initial brief (that the program was completely legal, even if warrants weren't requested) would qualify.

Second, the paragraph does not say that Ashcroft was required to review the full details of the program, or that he was ever asked to review the full details.

Third, the other person mentioned in this paragraph-- Counsel to the President-- was Alberto Gonzalez.

Gonzalez has stated, many times, that the president has the power (as commander in chief) to act at his discretion to protect the country. He has also stated that these powers were explicitly endorsed by Congress when it passed the AUMF resolution.

An alternate interpretation of this paragraph-- as plausible as Hinderaker's-- is that Ashcroft was asked to approve only the parts of the program the administration believed he would support. If they felt he might object to something, it went to Gonzalez for approval.

Fourth, the paragraph doesn't say approval is required in order to proceed. The fundamental principle of the unitary executive / commander-in-chief argument is that the president's authority supercedes all others.

Fifth, note what was actually said: "I have reauthorized this program more than 30 times." Not "we have reauthorized" (meaning all parties concurred) or "re-approved" (approval is not the same thing as authorization).

This administration uses words very precisely-- they insert vague language and qualifiers into every statement, to give them maximum flexibility.

Not reading language closely and strictly is sloppy (especially with an administration known to split hairs and employ loopholes). Reading nonexistent facts into a statement-- and that is the most generous description of what Hinderaker did-- is disingenuous.

Since his premise is incorrect, the reasoning that follows is, of course, unsound. But I'll add another point.

2. Why did things erupt in March, 2004? Hinderaker claims:

"The problem apparently--based on an exchange between Chuck Schumer and Comey--had to do with the way in which the NSA program was being administered or overseen at that time."

To Hinderaker's credit, he admits that he doesn't really know what caused the uproar. That's evidenced by his use of the words "apparently", "based" and "or".

It would have been nice if he'd pointed out that interpreting an oral exchange (where you aren't present) is unreliable. There's a possibility in any exchange, that one party phrased a question poorly, or that the other misheard it-- or that he/she misspoke in answering it.

And, of course, that you're misinterpreting what one or both parties said. If you can't ask questions-- to make sure people mean what they said and that you heard it right-- you're likely to make a mistake.

But he takes what he thinks they might have meant, adds a paragraph about the hiring of a new staff member and combines it with his unfounded statement that the White House had been asking Ashcroft to review the program in its entirety and approve it every 45 days. He concludes that it became confused when the new signoff didn't arrive, and went to Ashcroft's hospital room to ask why.

An alternate explanation is presented in the original New York Times account of the program. This is from the 12/16 editions; again, I'll quote verbatim to so no one thinks I'm editing:

"A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials. While not knowing all the details of the exchange, several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants.

"One official familiar with the episode said the judge insisted to Justice Department lawyers at one point that any material gathered under the special N.S.A. program not be used in seeking wiretap warrants from her court."

My summary: The judge began to think the Justice Department was using evidence the NSA had gathered without a warrant to try to persuade her to issue a warrant, she met with them and told them it was inappropriate.

To quote two more paragraphs from the story (emphasis added):

"In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.

For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said."

This explanation is substantially more logical. In response to a complaint, Ashcroft and Comey conducted a formal audit for the first time. What they found led them to deny approval.

Ockham's Razor: entia non sunt multiplicanda praeter necessitatem. Or, "the simplest solution tends to be the best one." When competing theories are equal in other respects, selecting the one that introduces the fewest assumptions and postulates the fewest hypothetical entities.

And the theories aren't equal-- Hinderaker has no basis for assuming that Ashcroft knew exactly what was going on.

3. One final point. Hinderaker doesn't dispute Comey's account-- he merely suggests a different motivation for the actions.

If his scenario were true, Card and Gonzalez acted inexplicably in the hospital room. When Ashcroft denounced the program from his sickbed, why did they turn and go?

If Ashcroft had really been approving it for over two years-- and knew what he'd been approving-- his sudden, abrupt refusal to comply would make absolutely no sense.

Any rational person in that situation would have stayed and argued-- bewildered by the change of behavior and convinced that it must have been triggered by delerium.

But Comey says they turned and left.

The explanation that satisfies that question is that Ashcroft said something like "What you're doing is outrageous and illegal, I never would have OKed this if I'd known about it, you lied to me, I found out and I absolutely won't give you the OK now-- and if you do this without me, I'll quit."

I've provided considerably more substance than Hinderaker's post, so I trust this suffices.